People v. Leis

• Decision Date: 30 March 1961
• Citation: 213 N.Y.S.2d 138,13 A.D.2d 22
• Parties: PEOPLE of the State of New York, Respondent, v. Edward LEIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 138

213 N.Y.S.2d 138

13 A.D.2d 22

PEOPLE of the State of New York, Respondent, v. Edward LEIS, Appellant.

Supreme Court, Appellate Division, Fourth Department.

March 30, 1961.

John G. Putnam, Jr., Buffalo, for appellant.

Carman F. Ball, Buffalo, for respondent (Edward J. Marschner, Buffalo, of counsel).

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, McCLUSKY and HENRY, JJ.

WILLIAMS, Presiding Justice.

The defendant appeals from a judgment convicting him of criminal negligence in the operation of a motor vehicle resulting in death (Penal Law, § 1053-a).

The indictment under which he was convicted contains only this one count. In other words, to point up the main problem before us, there was no count or charge of operating a motor vehicle while in an intoxicated condition under Subdivision 5, Section 70, of the Vehicle and Traffic Law. ¹

Subdivision 5 of Section 70 (Vehicle & Traffic Law), which pertains to the operation of a motor vehicle or motorcycle while in an intoxicated condition, as in effect at the time in question, provided:

'Upon the trial of any action or proceeding arising out of acts alleged to have been committed by any person arrested for operating a motor vehicle of motor cycle while in an intoxicated condition, the court may admit evidence of the amount of alcohol in the defendant's blood taken within two hours of the time of the arrest, as shown by a medical or chemical analysis of his breach, blood, urine, or saliva. For the purposes of this section * * * (c) evidence that there was, at the time, fifteen-hundredths of one per centum, or more, by weight of alcohol in his blood, may be admitted as prima facie evidence that the defendant was in an intoxicated condition.'

A witness, who was a chemist and not a doctor of medicine, testified. He was well experienced and undoubtedly qualified as an expert to determine the alcoholic content present in samples of blood. He found that the blood of the defendant contained 0.19 alcohol by weight. He was asked if he was 'familiar with the commonly accepted standard of alcohol in the blood?' and he replied that it was 0.15. He never saw the defendant, but based solely on the chemical analysis and on the standard which he enunciated, he gave an opinion that the defendant was intoxicated 'at the time.' We assume that he meant at the time of the extraction of the blood, but the record is not clear as to that. He was asked, 'Does it in all cases mean a man is intoxicated when his blood condition is 0.19?' and he answered, 'When backed by other evidence'. He finally said that if a person's blood showed a percentage over 0.15 he was undeniably intoxicated 'on a chemical basis.' It is obvious that he was relying on the presumption or standard contained in Subdivision 5 of Section 70. His testimony was objected to, perhaps not on a precisely proper basis, but sufficiently to alert the court to the fact that the defendant objected to the use of the presumption specified in said Subdivision 5. Furthermore, at the conclusion of the People's case, a motion to strike this testimony was denied. This motion was made on the assumption that the evidence was inadmissible under said Subdivision 5 because there had been no showing that the sample was taken 'within two hours of the time of the arrest.' Both the court and trial counsel seemed to be under the misapprehension that that subdivision controlled the admission of the evidence. But as we have said, Subdivision 5 of Section 70 was not in any way involved, and evidence based only on 'the standard' of Subdivision 5 was inadmissible and should have been rejected, even though the objection was inartistically phrased, and possibly was based on a false premise as to the law.

The trial judge not only permitted this evidence to stand, but charged as follows:

'There was the testimony of Thomas Rejent [the chemist], who was a toxicologist. He said that he made an examination, a chemical examination, of the blood submitted to him as coming from the body of the Defendant, that he received an envelope containing a rubber stopper tube, which contained the blood; that he made an analysis to determine the content of the blood and found it 0.19 by volume. The standard of determination is 0.15.' (Italics ours.)

The jury was further instructed:

'He [the chemist] testified as to the tests he made and told you the amount of alcohol under the V. & T. Law--he testified he found 0.19 of alcohol in this man's blood at the time--the law only requires 0.15 to warrant any presumption that he was intoxicated. The law says that 0.15 is sufficient to warrant the inference that a man is intoxicated. This was 0.19. You don't have to take anybody's opinion, including the toxicologist.' (Italics ours.)

This in effect instructed the jury that the presumption created under Subdivision 5 applied to this case and to this defendant. This was error which requires a reversal.

We repeat that there was no charge against the defendant under that section or 'For the purposes of [that] section.' The only charge was for violation of Section 1053-a of the Penal Law which is a completely different crime than that specified in Subdivision 5 of Section 70, and with separate and more drastic penalties. There is nothing in, or applicable to, Section 1053-a concerning presumptions. That being so, there was no presumption that would apply from the mere presence of a certain amount of alcohol by weight in defendant's blood. Furthermore, the language 'For the purposes of this section' cannot be construed to mean for the purposes of determining whether any other penal section has been violated.

In People v. Manning, 7 A.D.2d 1008, 184 N.Y.S.2d 240, 242, the defendant was being tried, as here, for a violation of § 1053-a of the Penal Law. There was testimony that an analysis of his...